Appeal from an order of the United States District Court for the Southern District of New York (Keenan, J.), denying a section 2254 application for a writ of habeas corpus. Affirmed.
Before TIMBERS, VAN GRAAFEILAND and NEWMAN, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge :
Jose Flores Rodriguez appeals from an order of the United States District Court for the Southern District of New York (Kennan, J.) denying his section 2254 application for a writ of habeas corpus. Because the district court correctly decided the case on the merits, we affirm. However, for reasons hereafter discussed, we believe the district court should not have reached the merits.
On August 3, 1981 appellant was convicted on six counts of first degree robbery in New York State Supreme Court. The conviction was based on proof that appellant and another man robbed a Manhattan jewelry company and five workmen of substantial amounts of jewelry and money. Appellant's sole defense, based on section 40.00 of the New York Penal Law, was that his participation in the robbery was coerced by his apparent accomplice.
The trial court correctly instructed the jury that it was the State's burden to prove each element of the crime beyond a reasonable doubt. Turning then to appellant's claim of duress, the court charged that appellant had the burden of proving this affirmative defense by a preponderance of the evidence. See N.Y. Penal Law § 25.00(2). Although appellant did not object to the latter charge when it was given, he now contends that it unconstitutionally required him to disprove an element of the crime of first degree robbery. Finding no merit in this contention, the district court denied appellant's habeas corpus petition. However, because the appellant's habeas corpus petition. However, because of appellant's failure to preserve his claim of error, the district court should not have considered it.
Section 470.05 of New York's Criminal Procedure Law provides in substance that failure to object to an erroneous charge precludes review by an appellate court. Accordingly, when Rodriguez asserted his claim of unconstitutionality as one of the arguments in his Appellate Division brief, the State argued in response that Rodriguez had failed to object to the trial court's charge and thus had waived his right to appellate review on that issue. The Appellate Division affirmed without opinion, 97 A.D.2d 683, and the New York Court of Appeals denied leave to appeal, 61 N.Y.2d 677. If the affirmance by the Appellate Division was on procedural grounds, Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), teaches that, since appellant has shown neither cause for the default nor prejudice resulting therefrom, the district court should not have considered appellant's habeas corpus claim.
Because of our "respect for state procedural rules designed to require contemporaneous objections", Phillips v. Smith, 717 F.2d 44, 51 (2d Cir. 1983), cert. denied, 465 U.S. 1027, 79 L. Ed. 2d 689, 104 S. Ct. 1287 (1984), we adopted a policy, shortly after Wainwright, of presuming that an affirmance without opinion by a New York Appellate Court, in which the argument of procedural waiver was advanced, was on procedural grounds. See, e.g., Taylor v. Harris, 640 F.2d 1, 2 n.3 (2d Cir.) (per curiam), cert. denied, 452 U.S. 942, 101 S. CT. 3089, 69 L. Ed. 2d 958 (1981); Martinez v. Harris, 675 F.2d 51, 54-55 (2d Cir.), cert. denied, 459 U.S. 849, 74 L. Ed. 2d 97, 103 S. Ct. 109 (1982); Johnson v. Harris, 682 F.2d 49, 51 (2d Cir.), cert. denied, 459 U.S. 1041, 74 L. Ed. 2d 609, 103 S. Ct. 457 (1982); Edwards v. Jones, 720 F.2d 751, 753-54 (2d Cir. 1983); Cantone v. Superintendent, New York Correctional Facility at Green Haven, 759 F.2d 207, 217-18 (2d Cir. 1985).
Although the foregoing decisions were said to have "clarified this Circuit's law relating to interpretations of rulings without opinions by New York appellate courts", Gulliver v. Dalsheim, 687 F.2d 655, 659 (2d Cir. 1982), a panel of this Court took a page from the diary of the damsel in Lord Byron's Don Juan, who, "whispering 'I'll ne'er consent'-consented", and decided Hawkins v. LeFevre, 758 F.2d 866 (2d Cir. 1985). In Hawkins, the Court held that the rule as enunciated in the above cases did not extend to all factual situations and assumed that, despite the absence of an Appellate Division opinion in that case, the State court affirmed "because it believed there was no constitutional error or, if there were such an error, that it was harmless beyond a reasonable doubt." Id. at 872. Having assumed that the Appellate Division judges thus reasoned, the Hawkins panel then proceeded to point out that they reasoned in error. Id. at 874-79. See Daye v. Attorney General, 696 F.2d 186, 199 (2d Cir. 1982) (en banc) (Van Graafeiland, J., dissenting), cert. denied, 464 U.S. 1048, 104 S. Ct. 723, 79 L. Ed. 2d 184 (1983).
The district court in the instant case, while recognizing that "the Martinez presumption retains validity after Hawkins ", opted to follow Hawkins because of the "fundamental" constitutional right involved. Proceeding to the merits, the district court then held, somewhat inconsistently it seems, that appellant was not deprived of a fundamental constitutional right when the burden of proving his affirmative defense by a preponderance of the evidence was imposed upon him.
Admittedly, this is somewhat similar to the line of reasoning followed by the New York Court of Appeals in People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976), aff'd sub nom. Patterson v. New York, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977), upon which the district court heavily relied. However, when the New York County of Appeals decided Patterson, it was considering law that had been called into question by the Supreme Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), which required the prosecution to prove the absence of heat of passion under a Maine homicide statute. See People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430 (1980). In People v. Patterson, the New York court made it clear that, insofar as New York was concerned, placing the burden of proof on the defense was fair, because of the defendant's knowledge or access to the evidence other than his own on the issue. People v. Rosa, 65 N.Y.2d 380, 386, 492 N.Y.S.2d 542, 482 N.E.2d 21 (1985); People v. Walker, 64 N.Y.2d 741, 485 N.Y.S.2d 978, 475 N.E.2d 445 (1984). There was no reason therefore for the Appellate Division in the instant case to reconsider the burden of proof issue, and we will not assume that it did. The Appellate Division is much more likely to have concluded that appellant simply decided not to make an untenable argument in the trial court. In short, we believe that the holdings of Martinez and its progeny control and that the merits of the instant case should not have been reached. See Stepney v. Lopes, 760 F.2d 40, 44 (2d Cir. 1985).
This holding carries with it no implication that the district court's decision on the merits was faulty. Quite the contrary. Because due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime with which the defendant is charged, In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), the prosecution's duty to negate an affirmative defense depends in large measure upon what the state has specified as the essential ingredients of the crime. Engle v. Isaac, 456 U.S. 107, 120, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982); Patterson v. New York, supra, 432 U.S. at 210. "The controlling factor appears to be what the legislature chose to include as elements of an offense." United States v. Calfon, 607 F.2d 29, 30 (2d Cir. 1979) (per curiam) (emphasis in original), cert. denied, 444 U.S. 1085, 100 S. Ct. 1044, 62 L. Ed. 2d 771 (1980).
For example, under section 160.15 of New York's Penal Law, a conviction of robbery in the first degree may be predicated upon theft accompanied by the display of a firearm. However, the statute also provides for a possible affirmative defense based upon a showing that the weapon was unloaded. In Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir. 1984), cert. denied, 470 U.S. 1056, 105 S. Ct. 1765, 84 L. Ed. 2d 826 (1985) and again in Ames v. New York State Division of Parole, 772 F.2d 13, 15 (2d Cir. 1985), we recognized that there was a distinction for purposes of due process between the elements of the crime and the affirmative defense permitted by the statute. Due process, we said, permits the State to require defendants to bear the burden of persuasion as to those affirmative defenses that constitute separate issues rather than the elements of the crime. Mitchell at 954.
In order to convict Rodriguez of the crime of robbery, the State had to show that he wrongfully took property from its owners with intent to deprive them of it. N.Y. Penal Law §§ 155.05, 160.15; see People v. Robinson, 90 A.D.2d 249, 250, 457 N.Y.S.2d 347 (1982), aff'd, 60 N.Y.2d 982, 471 N.Y.S.2d 258, 459 N.E.2d 483 (1983). The State clearly met this burden when it proved that Rodriguez ordered the five workers to kneel, handcuffed them to office furniture, took their money and jewelry, ransacked the workbenches and office safe and fled with his cohort, after first disconnecting the telephones. Rodriguez' claimed motivation for these acts was not an essential element of the crime. See People ex rel. Hegeman v. Corrigan, 195 N.Y. 1, 12, 87 N.E. 792 (1909). The case therefore fits comfortably within the broad line of criminal cases that ...